How to Kill the Electoral College

WHY YOU SHOULD CARE

Because unlike other proposals to end the Electoral College, this one isn’t a pipe dream.

December 19, 2016

The Electoral College meets today to officially make its choice for president. Despite some kvetching, it’s likely to continue a long tradition of confirming the vote already decided on election night: Hello, Mr. President.

But for those hoping the presidency starts going to the popular vote winner beginning with the next election, University of Texas-Austin constitutional law professor Justin Nelson has a counterintuitive option — and it doesn’t even require a constitutional amendment. The former law clerk to Supreme Court Justice Sandra Day O’Connor recently founded One Nation One Vote, a nonprofit paving the way for a popular-vote election as early as 2020. Our conversation with Nelson has been edited for clarity and length.

WHAT COULD HAPPEN TODAY?

Justin Nelson: Anything theoretically could happen. There are various state laws that require the electors to vote for the candidate that the state picked. Many states have these laws — some do not. However, electors can choose to violate state law; if they vote for somebody else, that vote counts. But in many states they face misdemeanor penalties, or there’s a fine. As a practical matter, almost all of them are going to vote for Donald Trump.

SHOULD THE ELECTORS SWITCH AND VOTE FOR HILLARY CLINTON?

Nelson: No, I am not advocating that. Trump won the Electoral College. Those are the rules that were in place at the time of the election, and it’s why we really need to change it going forward.

Let’s turn our attention to the national vote compact — an agreement among states totaling 270 electoral votes to back the winner of the national popular vote. We already have 165 who have joined; we’re over 60 percent toward the goal. The question is: Can we find, or will there be, another 150 electoral votes who also join?

For the second time in five elections, we have had a popular vote winner that does not match up with the electoral college results, and that is just awful for democracy.

Justin Nelson

HOW DO YOU GET AROUND STATE LAWMAKERS WHO DON’T WANT CHANGE?

Nelson: There are enough states — 26 of them — where we can put the issue directly in front of voters as a ballot measure. Historically, the issue has polled quite well. For instance, in Alaska around 2010, 70 percent of the people favored a national popular vote. In Oklahoma, 79 percent favored a national popular vote in 2015. This is not a partisan issue. Will it be that high today? My guess is probably not. But hopefully it will come back a little bit once the election is more in the rearview mirror.

IF THE POPULAR VOTE DECIDED THE PRESIDENCY, WOULDN’T WE LOSE GEOGRAPHIC DIVERSITY AND BASICALLY TURN THE VOTE OVER TO BIG CITIES?

Nelson: Look, we are one country, one nation. Every vote should count equal. If the worry is geographic diversity, that’s not what the presidency is about — that’s what the Senate is about. The House of Representatives has that bias too because every state is entitled to one House member regardless of size. The Senate is the one thing that cannot be amended. It will always be there as a check and a representative of geographic diversity.

But to say the minority should prevail over the majority for the presidency, simply because of where the votes were allocated, doesn’t make sense in today’s democracy. For the second time in five elections we have had a popular vote winner that does not match up with the electoral college results, and that is just awful for democracy. This creates a real crisis.

WE LIVE IN A REPUBLIC WHERE THE FOUNDERS SPECIFICALLY MANDATED AN ELECTORAL COLLEGE TO PREVENT SOLE MAJORITY RULE. WHAT GIVES?

Nelson: Being a republic does not mean the people don’t get to vote. We set up our Constitution to protect against a tyranny of the majority through checks and balances — we’re now in a situation of tyranny of the minority. There is nothing in the Constitution that mandates winner-take-all. States didn’t really adopt that until 1836. The checks and balances were set up for the separation of powers and deliberation. If the electoral college is not deliberating, it’s not doing its original purpose. The founders would be rolling in their graves if they knew the electoral college was simply being used to ratify a popular vote.